TMI Blog1988 (5) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... dhra in the State of Gujarat where there is total prohibition by importing different varieties of Indian made foreign liquor in sealed bottles like scotch whisky, beer etc. from wine merchants of Vanswada in the State of Rajasthan. But then by engaging himself in such activities he falls within the description of a bootlegger as defined in s. 2(b) and therefore comes within the ambit of sub-s. (1) of s. 3 of the Act by reason of the legal fiction contained in sub-s. (4) thereof. Put very briefly, the essential facts are these. On prior information that the appellant was about to import Indian made foreign liquor in bulk in truck bearing registration No. GRY 3832, on the night between 29/30th December, 1986, the Gujarat police put up a road block on the bridge near Machan River where on a sign given it failed to stop. After a long chase, the police jeep was able to intercept the truck at Limdi. Both the driver Ahmed Saiyad Abdul Majid Kalander and cleaner Sadique Ahmed Yusuf Durvesh Shaikh got down and said that the truck was empty. However, on a search it was found to be laden with 77 sealed cases containing 2040 bottles of different brands of scotch whisky, beer etc. and it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-s. (2) of s. 3 that the importation of foreign liquor by the appellant from Vansawada across the border was likely to affect public health of the citizens of Gujarat and therefore it was necessary to detain him with a view to preventing him from acting in any manner prejudicial to public order, renders the order of detention bad and invalid. (ii) There was no sufficient material on record on which such subjective satisfaction of the detaining authority could be reached. Neither of the two contentions prevailed with the High Court and it accordingly declined to interfere. At the time when the judgment was to be delivered by the High Court, learned counsel appearing for the appellant sought permission to raise an additional point and he was permitted to do so. It was as to whether the detention of the detenu at Sabarmati Central Prison, which was a place other than Godhra where he ordinarily resides, was tantamount to a breach of the mandate of Art. 21 of the Constitution as his detention at a far-off place was not consistent with human dignity and civilized normes of behaviour. The additional point so raised also did not find favour with the High Court. The appeal by special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dural safeguards in the case of preventive detention of citizens. When the life and liberty of citizen was involved, it is expected that the Government will ensure that the constitutional safeguards embodied in Art. 22(5) are strictly observed. When any person is detained in pursuance of an order made under any law of preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. These procedural safeguards are ingrained in our system of judicial interpretation. The power of preventive detention by the Government under any law for preventive detention is necessarily subject to the limitations enjoined on the exercise of such power by Art. 22(5) as construed by this Court. Thus, this Court in Khudiram Das v. State of West Bengal, [1975] 2 SCC 81 speaking through Bhagwati, J. observed: The constitutional imperatives enacted in this article are two-fold: (1) the detaining authority must, as soon as may be, that is, as soon as practicable after the detention communicate to the detenu the grounds on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the grounds which justify the taking of the drastic measure of preventive detention. The requirements of Art. 22(5) are satisfied once basic facts and materials which weighed with the detaining authority in reaching his subjective satisfaction are communicated to the detenu. The test to be applied in respect of the contents of the grounds for the two purposes are quite different. For the first, the test is whether it is sufficient to satisfy the authority, for the second, the test is whether it is sufficient to enable the detenu to make his representation at the earlier opportunity which must, of course, be a real and effective opportunity. The Court may examine the grounds specified in the order of detention to see whether they are relevant to the circumstances under which preventive detention could be supported e.g. security of India or of a State, conservation and augmentation of foreign exchange and prevention of smuggling activities, maintenance of public order, etc. and set the detenu at liberty if there is no rational connection between the alleged activity of the detenu and the grounds relied upon, say public order. In the enforcement of a law relating to prevent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention to see whether they were relevant to the circumstances under which the impugned order was passed, the detaining authority would neces sarily insist upon sufficiency of the grounds which would justify the taking of the drastic measure of preventively detaining the person. Viewed from this perspective, we wish to emphasise and make it clear for the guidance of the different High Courts that a distinction must be drawn between the delay in making of an order of detention under a law relating to preventive detention like the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 and the delay in complying with the procedural safeguards of Art. 22(5) of the Constitution. It has been laid down by this Court in a series of decisions that the rule as to unexplained delay in taking action is not inflexible. Quite obviously, in cases of mere delay in making of an order of detention under a law like the Conservation of Foreign Exchange Prevention of Smuggling Activities Act, 1974 enacted for the purpose of dealing effectively with persons engaged in smuggling and foreign exchange racketeering who, owing to their large resources and influence have been po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken into custody on 30th May, 1987. He had forwarded the report to the State Government on the 28th and the Government accorded its approval on the 31st. Even though there was no explanation for the delay between 2nd February and 28th May, 1987 it could not give rise to a legitimate inference that the subjective satisfaction arrived at by the District Magistrate was not genuine or that the grounds were stale or illusory or that there was no rational connection between the grounds and the impugned order of detention. There is a plethora of decisions of this Court as to the effect of unexplained delay in taking action. These are admirably dealt with in Durga Das Basu s Shorter Constitution of India, 8th edn. at p. 154. We will only notice to a few salient decisions. In Olia Mallick v. State of West Bengal, [1974] 1 SCC 594 it was held that mere delay in making the order was not sufficient to hold that the District Magistrate must not have been satisfied about the necessity of the detention order. Since the activities of the detenu marked him out as a member of a gang indulging systematically in the cutting of aluminium electric wire, the District Magistrate could have been w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bihar Ors., [1986] 4 SCC 407 and Hemlata kantilal Shah v. State of Maharashtra, [1981] 4 SCC 647. Point No. (2): Quite recently, we had occasion to deal with this aspect in Bal Chand Bansal v. Union of India Ors., JT (1988) 2 SC 65. In repelling a contention raised on the dictum in Ramesh Yadav v. District Magistrate, Etah, [1985] 4 SCC 232, one of us (Sharma, J.) drew attention to the observations of Mukharji, J. in Suraj Pal Sahu v. State of Maharashtra, [1986] 4 SCC 378 that the prejudicial activities of the person detained were so interlinked and continuous in character and are of such nature that they fully justified the detention order. Here the grounds of detention clearly advert to two earlier incidents, one of 21st July, 1982 for which the detenu was being prosecuted in Criminal Case No. 303/82 relating to the recovery and seizure of 142 bottles of foreign liquor from his residential house which ended in an acquittal because the prosecution witnesses turned hostile, and the other of 30th May, 1986 for which Criminal Case No. 150/86 relating to recovery and seizure of 24 bottles of foreign liquor from his house was then still pending, and go on to recite that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e maintenance of public order when such person is engaged in or is making preparation for engaging in any activities, whether as a bootlegger or dangerous person or drug offender or immoral traffic offender or property grabber, which affect adversely or are likely to affect adversely the maintenance of public order. Explanation: For the purpose of this sub-section, public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely inter alia, if any of the activities of any person referred to in this sub-section directly or indirectly, is causing or is likely to cause any harm, danger or alarm or feeling of insecurity among the general public of any section thereof or a grave or widespread danger to life, property or public health. The District Magistrate in passing the impugned order has recorded his subjective satisfaction with respect to the appellant that with a view to preventing him from acting in any manner prejudicial to the maintenance of public order, it is necessary to make an order that he be detained. In the accompanying grounds for detention this is the basis for the formation of his subjective satisfaction. They go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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